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creek, also a water of Slate. Which of these would he decide to be the dividing ridge between Spencer's creek, and Slate; or can either of them be properly so called? It is contended on the part of the appellants, that the ridge on the upper, or south side of Spencer's creek would, in the general, and common acceptation of men, be considered as the proper one. It may be admitted, that in many, perhaps in most cases, a call for the dividing ridge between two streams would generally be considered as designating that point above the one, and adjoining the other; but it must also be admitted, that in some cases it would not be so considered; it would depend on the direction or course of the streams, and the manner in which they are united with each other. If the general course of the one was south, and the other north, and the other running south, should turn east to form the junction, and the one running north should continue its course, then the land below the junction, would by every person be considered as dividing the one stream from the other. Take as an example that branch of Spencer's Creek, called Harper's Fork; suppose it the main stream, and that it formed a junction with Slate Creek instead of Spencer's Creek, could a doubt exist that the land on the lower side was the dividing ridge between that stream and Slate Creek? The dividing ridge on the south side of Spencer's Creek, is, in truth and in fact, a dividing ridge between that creek and Green-brier, another water of Slate, running nearly parallel with Spencers's Creek, and forming a junction with Slate above it. The same VOL. V.

35

1820.

Perkins

v.

Ramsey.

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fact exists as to the dividing ridge between Greenbrier and Brush Creek. The ridge, then, extending northwardly from the mouth of Spencer's Creek might, with equal probability, be pursued as either of the others; it would lead to a pond, as designated on the connected platt 82. It is true, this pond is not proved to be a large one, and a subsequent locator on a view of it might conclude it did not answer the description of that called for in the entry. If he returned and pursued the ridge between Greenbrier and Brush Creek, he would be conducted to a pond, designated on the connected platt 38. This also is not a large pond, and may be considered as not answering the description. But supposing he should pursue the ridge on the south side of Spencer's Creek, would it conduct him certainly to the pond No. 1., as designated on the connected platt? We think it very doubtful, from the proofs in the cause. It is not situate on the dividing ridge, but is nearly surrounded by the drains and branches of Green-brier, is from 50 to 80 poles distant from the ridge, was nearly surrounded by high, strong, and thick canes; and, although from the testimony, there appears to have been a good deal of conversation among the residents at Boonesborough respecting a large pond in this section of country, yet its precise situation was known only to a few, among some of whom existed an agreement to conceal their knowledge of it, and many of the residents at that place and its vicinity knew not, nor had heard any thing respecting it: to which may be added, that the pond designated on the connected platt 37., is a large

pond, was also known to many, and possibly may have been the one spoken of in some of the general and loose conversations at Boonesborough; and it may be further observed, that the residents at Strode's and M'Gee's stations, (which were the nearest ones,) as well as many others, who were conversant in that section of country, had never seen, and did not know of, the pond No. 1. until a considerable time after the date of the entry. The Court is, therefore, of opinion, that this pond was not so generally known, or could be so readily found, as to support and uphold this entry; and that it would be requiring more than ordinary and reasonable diligence to traverse and search all the dividing ridges represented on the connected platt.

But we are not satisfied that, according to the legal principles or well settled rules for construing entries, Slate creek, can be substituted for Hingston's fork : on the contrary, we believe it would be making, rather than construing an entry. No case has been produced, where this has been permitted, and it is believed none such exists. The counsel for the appellants contends, that as from the proofs in the cause, it appears that Slate creek was by many supposed to be Hingston, this circumstance would authorize such substitution; to this it may be answered, that this mistake existed among the hunters and locators at Boonesborough only, and that among them, there were several who knew Slate creek by its appropriate name; to which it may be added, that all the hunters and locators at Strode's and M'Gee's stations, as well as many others, also knew Slate creek, and that it was

1820.

Perkins v.

Ramsey 1820.

Perkins v.

Ramsey.

not a water of Hingston's fork; so that a majority of those conversant in that section of country did not labour under the mistake. We are therefore of opinion, that it would be extending the rules of construction too far to make this substitution, in support of the mistake of the few, against the knowledge of the majority; if a substitution could be permitted in any case. We are farther of opinion, that Hings

ton's fork, was of more general notoriety than any of those streams, and ought not to be disregarded in construing this entry; that it is one of the prominent calls to ascertain its situation; and that a subsequent locator having arrived at Hingston's fork, and finding the pond designated on the platt 37, which is proved to have been known to many, and is little inferior in size to the pond 1, might rationally conclude, that the locator of the entry under consideration, had mistaken some western branch of Hingston, for Spencer's creek; thus situated, he would conjecture, that an entry containing such incorrect, mistaken, or false calls, and requiring so much diligence and labour, was so doubtful and uncertain, as to induce him to abandon further research. This entry, therefore, from a full view of all the proofs and circumstances, is deemed invalid, for want of that certainty and precision required by law.

In accordance with this opinion, is the decision of the Court of Appeals of the State of Kentucky, in the suit of Dunleary against Reed and others, wherein the same entry was examined upon substantially the same evidence.

Decrce affirmed with costs.

1820.

Mandeville

v.

Welch.

(COMMON LAW.)

MANDEVILLE V. WELCH.

Bills of exchange and negotiable promissory notes, are distinguished from all other parol contracts by the circumstance that they are prima facie evidence of valuable consideration, both between the original parties, and against third persons.

Where a chose in action is assigned by the owner, he cannot interfere to defeat the rights of the assignce in the prosecution of a suit brought to enforce those rights.

It makes no difference, in this respect, whether the assignment be good at law, or in equity.

But this doctrine only applies to cases where the entire chose in action has been assigned, and not to a partial assignment.

ERROR to the Circuit Court for the district of Columbia. This was an action of covenant brought by the plaintiff, James Welch, for the use of Allen Prior, against the defendant Mandeville, one of the firm of Mandeville & Jamesson, for the breach of certain articles of agreement set forth in the declaration. Several pleas were pleaded by the defendant; but as the opinion of this Court turned altogether upon the fourth set of pleadings, on which issue was joined, and at the trial a bill of exceptions taken, it is unnecessary to state the other pleadings.

The fourth plea alleged a release of the cause of action by the plaintiff before the commencement of the present suit. The plaintiff replied, in substance, that Welch being indebted to Allen Prior, in a sum exceeding 8,707 dollars and 9 cents, and Mandeville

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